(1) ADOPTING REPORT AND RECOMMENDATION [Doc. No. 16]; (2) GRANTING MOTION TO
DISMISS PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 10]; and (3) DENYING CERTIFICATE OF APPEALABILITY.
IRMA E. GONZALEZ, District Judge.
This matter is before the Court on the motion of Respondent Randy Grounds ("Respondent") to dismiss petition for writ of habeas corpus [Doc. No. 10, Resp.'s Mot.], made in response to Petitioner Tito Odilon Lopez's ("Lopez") Petition for Writ of Habeas Corpus ("Petition") [Doc. No. 1]. Respondent asserts that the Petition is barred by the one-year statute of limitations. [Doc. No. 10, Resp.'s Mot. at 2.] Magistrate Judge Ruben Brooks issued a Report and Recommendation ("R & R") recommending that the Court dismiss the Petition as untimely. [Doc. No. 16, R & R.] Lopez subsequently filed an Objection to the R & R ("Objection"). [Doc. No. 17, Objection.]
Upon de novo review, the Court concludes Lopez did not file his Petition within the statute of limitations, and is not entitled to statutory or equitable tolling. Accordingly, the Court ADOPTS IN FULL the R & R and GRANTS Respondent's motion to dismiss.
The R & R contains an accurate summary of the proceedings in this case, and the Court fully adopts the Magistrate Judge's detailed background. [Doc. No. 16, R & R at 2-5.] In sum, Lopez was sentenced to thirty years, eight months to life following conviction by jury trial in San Diego County Superior Court of the following charges: (1) torture; (2) assault and battery; (3) kidnapping with infliction of permanent paralysis; (4) forcible rape; (5) forcible oral copulation with use of a deadly weapon; (6) assault by means of force likely to produce great bodily injury; (7) assault with a deadly weapon; (8) corporal injury to a spouse/roommate with use of a deadly weapon; (9) corporal injury to a spouse/roommate with infliction of permanent paralysis; (10) making a criminal threat; and (11) false imprisonment with use of a deadly weapon. [Id. at 2-3.]
On February 5, 2008, the California Court of Appeal for the Fourth District, Division One, modified the judgment on direct appeal by striking the false imprisonment charge and attendant enhancements on the ground that this charge was a lesser included offense of the kidnapping count, and otherwise affirmed the conviction. [Id. at 3.] The California Supreme Court denied Lopez's petition for direct review on May 14, 2008. [Id.] Lopez did not file for writ of certiorari with the United States Supreme Court. [Id. at 4.]
Lopez subsequently challenged his conviction collaterally in state court by filing a petition for writ of habeas corpus in the San Diego Superior Court which was denied on June 23, 2009. [Id.] Continuing his state court challenges, Lopez then filed a petition for writ of habeas corpus in the California Court of Appeal which was denied on September 23, 2009. [Id.] Finally, on April 14, 2010, the Supreme Court of California denied Lopez's last petition for writ of habeas corpus filed in state court. [Id. at 4-5.]
On August 5, 2012, Lopez filed the instant Petition for Writ of Habeas Corpus in this Court,  which Respondent now moves to dismiss as untimely. [Doc. No. 10, Resp.'s Mot.] On June 6, 2013, Magistrate Judge Brooks issued a R & R recommending that the Court dismiss the Petition as untimely. [Doc. No. 16, R & R.] Lopez subsequently filed an Objection to the R & R in which he argues that the statutory period should be tolled based on his inability to timely file as a result of his lack of English language skills and his low intelligence quotient. [Doc. No. 17, Objection at 1-2.]
The duties of the district court in connection with a magistrate judge's R & R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo review determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz , 447 U.S. 667, 676 (1980); United States v. Remsing , 874 F.2d 614, 617 (9th Cir. 1989).
I. Statute of Limitations
The R & R provides the correct legal standard the Court must apply to determine whether Lopez's Petition is time barred. Per the Antiterrorism and Effective Death Penalty Act ("AEDPA"), federal habeas petitions are governed by a one-year period of limitation, which begins to run from the date on which judgment became final by the conclusion of direct review. 28 U.S.C. § 2244(d)(1). Dismissal with prejudice is appropriate for a federal petition ...